McDonnell v Ireland

• Jurisdiction: Ireland
• Court: High Court
• Judgment Date: 01 January 1996
• Date: 01 January 1996

(H.C., S.C.)

(H.C.)

McDonnell

and

Ireland

- Statute - Declaration of invalidity - Effect of declaration -Whether declaration of unconstitutionality rendered statute void ab initio - Constitution of Ireland, 1937, Articles 15.4, 25.5.1.

By virtue of s. 34 of the Offences Against the State Act, 1939, whenever a person holding an office in the civil service was convicted by a Special Criminal Court of a scheduled offence, such as membership of an unlawful organisation, such person would, immediately on conviction forfeit such office. By virtue of the Postal and Telecommunications Services Act, 1983, the functions of the Minister for Posts and Telegraphs were transferred to the fourth defendant. Further, by s. 45 (1) the fourth defendant was to accept into its employment on the vesting day every person who immediately before the vesting day was a member of the staff of the Department of Posts and Telegraphs and was designated by the Minister for employment by that company. By virtue of s. 2 (1) of the Postal and Telecommunications Services (Amendment) Act, 1984, any claim in respect of loss or injury alleged to have been suffered by any person arising out of the exercise before the vesting day of functions assigned to the fourth defendant was to lie against the fourth defendant and not the State nor the third defendant. Section 11 (2) of the Statute of Limitations, 1957, limits the time within which an action founded on tort may be instituted by a plaintiff to six years from the date on which the cause of actions accrued. The plaintiff was a fully established civil servant working in the postal service from 1963. In May, 1974, he was arrested and charged with membership of a proscribed organisation. Immediately, he was served with notice of suspension from duty. He was tried and convicted of the offence charged by the Special Criminal Court. Pursuant to s. 34 of the Act of 1939, the plaintiff was deemed to have automatically forfeited his position in the civil service as a result of his conviction on the 30 May, 1974. On his release, he applied in March, 1975, for re-instatement. His application was refused on the basis that he had automatically forfeited his position. Following the establishment of the fourth defendant in 1984, the plaintiff again sought reinstatement. This was refused on the basis that he had automatically forfeited his position upon conviction and furthermore he was not a designated person pursuant to s. 45 of the Act of 1983. In...